Inter State Water Disputes – Resolution of Disputes

under our Constitution : the place of the Supreme

Court.

1. We read a lot in the press these days about water disputes

between sister States of our Union. What exactly are inter

state water disputes ?

2. When one State claims a share in the waters of a river or a

stream to the exclusion, partial or otherwise, of another, an

inter State river water dispute arises and an unresolved

dispute leads to a cause of action before an appropriate court

or tribunal.

3. Our Constitution furnishes, in Article 131, the forum for the

redressal of disputes between States or between a State and

the Union. That forum is the Supreme Court.

4. To start with, Article 131 (excluding the proviso thereat) is an

original provision under the Constitution. It says:

Article 131. Original Jurisdiction of the Supreme Court:

Subject to the provisions of this Constitution, the Supreme

Court shall, to the exclusion of any other Court, have

original jurisdiction in any dispute:

(a)between the Government of India and one or more

States; or

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(b)between the Government of India and any State or

States on one side and one or more States on the

other; or

(c)between two or more States;

if and in so far as the dispute involves any question

(whether of law or fact) on which the existence or extent

of a legal right depends:

Provided that the said jurisdiction shall not extend to a

dispute arising out of any treaty, agreement, covenant,

engagement, sanad or other similar instrument which,

having been entered into or executed before the

commencement of this Constitution, continues in

operation after such commencement, or which provides

that the said jurisdiction shall not extend to such a

dispute.

5. An early interpretation of Article 131 by the Hon’ble Supreme

Court lays down the essence of Article 131 and this

interpretation continues to govern suits filed under Article 131.

“..Mere wrangles between governments have no place in

the scheme of that (131) article. They have to be

resolved elsewhere and by means less solemn and

sacrosanct than a court proceeding. The purpose of

Article 131 is to afford a forum for the resolution of

disputes which depend for their decision on the

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existence or extent of a legal right. It is only when a

legal, not a mere political, issue arises touching upon the

existence or extent of a legal right that Article 131 is

attracted.

State of Rajasthan and Ors Vs. Union of India and Ors (1977)

(Original Suits 1 to 6 of 1977)

A.I.R 1977 SC 1361 : (1977) (3) SCC 592. Decided on 06-05-

1977.

6. Article 131 of the Constitution is one of the most unique

provisions of the Constitution in that the interpretation of this

Article by the Supreme Court is not limited by considerations

that ordinarily limit a Court below that tries an original suit.

Article 131 lays down the forum for adjudicating a dispute

between a State and the Union or between two or more States

or between the Union joined by one or more States and

another State or States. That forum is the Supreme Court.

7. When States discover a mutual conflict of interest in the

waters of a river or a stream, are their competing claims

governed by Article 131 ?

8. The answer must be ‘NO’. Article 131 is not and was not

designed to override other provisions of the Constitution in the

event of a conflict. Article 262 seeks to exclude Article 131

when a dispute between States concerns waters. It says:

Disputes relating to Waters

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Article 262. Adjudication of disputes relating to waters of

inter state river or river valleys –

(1) Parliament may by law provide for the adjudication of

any dispute or complaint with respect to the use,

distribution or control of the waters of, or in, any inter

state river or river valley.

(2) Notwithstanding anything in this Constitution,

Parliament may by law provide that neither the Supreme

Court nor any other Court shall exercise jurisdiction in

respect of any such dispute or complaint as is referred to

in clause (1).

9. Is it justified to say that the Supreme Court may not entertain

any claim under Article 131 when such a claim is covered by

Article 262 ?

10. YES.

11. Article 262 is an original provision under the Constitution. In

exercise of power facilitated to the Parliament under Article

262 (1), the Parliament of India passed the Inter State Water

Disputes Act [INTER STATE RIVER WATER DISPUTES ACT, 1956

– Act No.33 of 1956] in the year 1956. This Statute defines a

‘water dispute’ and provides for a solution to States that claim

a share in disputed waters and above all, mandates that ‘water

disputes’ referable under this Act shall not be amenable to the

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jurisdiction of any court including the Supreme Court of India.

Some of the provisions of this Act may be noted:

12. Section 2(c) defines a ‘Water dispute’. It says:

(c) “Water dispute” means any dispute or difference

between two or more State Governments with respect to

i. The use, distribution or control of the waters of, or

in, any inter-state river or river valley; or

ii. The interpretation of the terms of any agreement

relating to the use, distribution or control of such

waters or the implementation of such agreement; or

iii. The levy of any water rate in contravention of the

prohibition contained in Section 7.

13. Section 3 lays down the manner of cognizance of a ‘Water

dispute’ by the Central Government. It says:

3.If it appears to the Government of any State that a water

dispute with the Government of another State has arisen or

is likely to arise by reason of the fact that the interests of

the State, or of any of the inhabitants thereof, in the waters

of an inter-state river or river valley have been, or are likely,

to be, affected prejudicially by-

a) any executive action or legislation taken or passed, or

proposed to be taken or passed, by the other State; or

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b) the failure of the other State or any authority therein to

exercise any of their powers with respect to the use,

distribution or control of such waters; or

c) the failure of the other State to implement the terms of

any agreement relating to the use, distribution or control

of such waters; the State Government may, in such form

and manner as may be prescribed, request the Central

Government to refer the water dispute to a Tribunal for

adjudication.

14. Section 6 of the Act provides:

6 (1). The Central Government shall publish the decision

of the Tribunal in the Official Gazette and the decision

shall be final and binding on the parties to the dispute

and shall be given effect to by them.

(2). The decision of the Tribunal, after its publication in

the Official Gazette by the Central Government under

sub-section (1), shall have the same force as an order or

decree of the Supreme Court.

15. Section 11 excludes the jurisdiction of the Supreme Court and

of other courts in respect of a ‘Water dispute’. It says:

11. Notwithstanding anything contained in any other law,

neither the Supreme Court nor any other court shall have

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or exercise jurisdiction in respect of any water dispute

which may be referred to a Tribunal under this Act.

16. As such, the Inter State Water Disputes Act of 1956 is a self

contained code and authority is taken in this statute to exclude

the jurisdiction of the Supreme Court under Section 11 of the

Act. This means a Tribunal constituted under this Act for the

purpose of adjudicating a water dispute between contesting

states is the exclusive venue for States to agitate a ‘water

dispute’ and within the scheme of this Act, the decision of such

a Tribunal is final and binds the party states.

17. Does an appeal lie against the order of a Water Disputes

Tribunal under Article 136 of the Constitution? Within the plain

meaning of all the relevant provisions, the answer is a simple

‘no’. Article 136 of the Constitution is an original provision

under the Constitution and provides as under:

Article 136. Special Leave to Appeal by the Supreme Court:

(1). Notwithstanding anything in this chapter, the

Supreme Court may, in its discretion, grant special leave

to appeal from any judgment, decree, determination,

sentence or order in any cause or matter passed or

made by any Court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment,

determination, sentence or order passed or made by

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any Court or Tribunal constituted by or under any law

relating to the Armed forces.

18. Article 136 of the Constitution does not and cannot override

Article 262 of the Constitution. Within the scheme laid out in

Chapter IV that covers Articles 124 to 147, Article 136(1)

overrides every other provision except 136(2). However, the

Supreme Court of India being the highest judicial organ of the

State, it may expand the scope of Article 136 to an extent that

does not conflict with the ouster of its jurisdiction under Article

262 read with the provisions of the Inter State Water Disputes

Act,1956.

19. A reasonable and uncontroverted basis exists to assume that

neither Article 131 nor Article 136 affords any relief to a State

not happy with the order of a Water Disputes Tribunal.

20. We may now look for whether this conclusion is supported by

prior case law and by the outcome of disputes raised and

controversies brought before the Supreme Court.

21. However, before we begin, we may note that Suits or petitions

previously filed before the Supreme Court under Article 131 or

136 that warranted the consideration of whether the same was

barred by Article 262 have never survived any challenge under

Article 262 in all cases where the Supreme Court held that

claims raised thereat were barred by Article 262.

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22. States that did not wish to concede that Article 262 bars one or

more of their claims had advanced and fashioned a variety of

arguments and yet, none rose to a level necessary to compel

the Supreme Court to disregard the removal of its jurisdiction

under Article 262 subsequent to the coming into force of the

Inter State Water Disputes Act, 1956. It is not difficult to see

why.

23. The Supreme Court has consistently held that a complaint over

some aspects of the Tribunal’s order or of another State’s

conduct alone may be advanced before it, presumably under

Article 131 or 136, only as long as the same can be shown to

not vary the adjudication of the Tribunal made in response to a

dispute referred to it under Section 3 of the Inter State Water

Disputes Act.

24. Therefore, any such complaint that complies with this

requirement may not be adequate at all to afford relief to a

State to an extent that it seeks. In fact, affected States in the

past have filed suits under Article 131 or 136 before the

Supreme Court by resting their claim against the Respondent

State on the premise that the Respondent State has breached

a duty to act or to refrain from acting in a certain manner and

that such ‘action or refusal’ is not covered under Section 2 (c)

of the Inter State Water Disputes Act, 1956.

Some of the decisions of the Supreme Court may be noted:

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25. A Writ Petition came to be filed under Article 32 of the

Constitution in 1983 by a private group, Tamil Nadu Cauvery

Neerppasana Vilaiporugal Vivasayigal Nala Urimai Padhuguppu

Sangam against the Union of India and four riparian States

sharing the Cauvery River Basin. The Petitioner pleaded for an

effective relief to the plight of the farmers dependant upon the

Cauvery Water flows into Tamil Nadu on the premise that the

Cauvery Water flows into Tamil Nadu were fast dwindling due

to the impounding of ever larger quantity of water by the State

of Karnataka. The Court declined to take judicial notice of facts

adverted to in the petition except the mutual conduct of the

contesting states and the Union after which the Court said it

became

“necessary that the legal machinery provided by the

Statute is set in motion before the dispute escalates”.

The Court directed the Central Government to immediately

constitute a Tribunal as provided for under the Inter State

Water Disputes Act, 1956. As to Article 262 and Section 11 of

the Inter State Water Disputes Act, the Court held:

“It is thus clear that Section 11 of the Act bars the

jurisdiction of all Courts including this Court to entertain

adjudication of disputes which are referable to a

Tribunal under Section 3 of the Act. Therefore, this

Court has no jurisdiction to enter upon the factual

aspects raised in the Writ Petition”

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Tamil Nadu Cauvery Neerppasana Vilaiporugal Vivasayigal

Nala Urimai Pudhugappu Sangam Vs. Union of India and ors.

A.I.R 1990 SC 1316 : (1990) (3) SCC 440. Decided on 14-05-

1990.

26. A certain determination of the Cauvery Water Disputes

Tribunal was successfully challenged under Article 136 by the

State of Tamil Nadu (in State of Tamil Nadu Vs. State of

Karnataka and Ors) and by the Union Territory of Pondicherry

(in Union Territory of Pondicherry Vs. State of Karnataka and

Ors). The State of Tamil Nadu and the Union Territory of

Pondicherry had sought interim relief before the Cauvery

Water Disputes Tribunal, but the Tribunal declined to consider

them (CMPs No. 4 and 9 of 1990) however, on the premise

that the matter of interim relief was not referred to the

Tribunal by the Central Government and that it was not open

to the Tribunal to adjudicate on a dispute unless the same was

referred to it by the Central Government. Aggrieved by this

order, the affected States made a successful showing before

the Supreme Court that

“the Supreme Court has the jurisdiction to decide the

scope of the powers of the Tribunal under the Act and in

case the Tribunal has wrongly refused to exercise

jurisdiction under the Act, then this Court is competent

to set it right and direct the Tribunal to entertain such

application and to decide the same on merits”.

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Partly accepting the contention advanced by the Petitioner

States, the Supreme Court concluded that it

“is the ultimate interpreter of the Inter State Water

Disputes Act, 1956 and has an authority to decide the

limits, powers and the jurisdiction of the Tribunal

constituted under the Act”.

However, the Court concluded that it would not decide in the

instant case whether the Tribunal possessed the power to

grant interim relief because such an exercise was not

warranted in view of the Court’s finding that in the dispute

already referred by the Central Government to the Tribunal,

there was sufficient material to indicate that the

“reliefs prayed for by them (petitioner States) in their

CMPs 4, 5 and 9 of 1990 were covered in the reference

made by the Central Government”.

State of Tamil Nadu Vs. State of Karnataka and Ors

WITH

Union Territory of Pondicherry Vs. State of Karnataka and

Ors.

(1991) Supp (1) SCC 240 : 1991 (2) SCR 501. Decided on 26-

04-1991.

27. In response to a Presidential Reference to the Supreme Court

under Article 143 of the Constitution (Special Reference No.1

of 1991) In the matter of the Cauvery Water Disputes

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Tribunal, the Supreme Court discussed at length its advisory

role and then went on to distinguish between its advisory

jurisdiction and its appellate jurisdiction under other provisions

of the Constitution. In response to questions of law posed by

the President, the Supreme Court made several observations

with regard to Article 262. It may be noted that the Presidential

Reference stated that the passing of an Ordinance by the State

of Karnataka that had the outcome of overriding the interim

order of the Cauvery Water Disputes Tribunal was a cause for

concern. It may also be noted that the State of Karnataka took

the contention that it had good faith to believe that the order

of the Tribunal granting interim relief was not merely without

jurisdiction but was also likely to adversely affect Karnataka’s

constitutionally protected interests in irrigation.

Varied interpretations of Article 131 and Article 262 were

advanced by all the four contesting States – the States of

Karnataka, Tamil Nadu, Kerala and the Union Territory of

Pondicherry. The Court said:

“It is clear from the Article (131) that this Court has

original jurisdiction, among other things, in any dispute

between two or more States where the dispute involves

any question whether of law or fact on which the

existence and extent of a legal right depends except

those matters which are specifically excluded from the

said jurisdiction by the proviso. However, the Parliament

has also been given power by Article 262 of the

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Constitution to provide by law that neither the Supreme

Court nor any other Court shall exercise jurisdiction in

respect of any dispute or complaint with respect to the

use, distribution or control of the water of, or in, any

interstate river or river valley. Section 11 of the Act,

namely, the Inter State Water Disputes Act, 1956 has in

terms provided for such exclusion of the jurisdiction of

the Courts”.

In the Matter of: Cauvery Water Disputes Tribunal.

A.I.R 1992 SC 522 : (1991) Supp. (2) SCR 497. Decided on 22-

11-1991.

28. In an original suit filed by the State of Karnataka against the

State of Andhra Pradesh and Others (Original Suit No.1 of

1997) under Article 131 of the Constitution, the State of

Karnataka sought, among others, that the Court direct the

Union of India to recognise that its publication of the final order

of the Krishna Water Disputes Tribunal was incomplete without

the inclusion of ‘Scheme B’ that was referred to in the final

order as well as in the modified final order of the Tribunal. A

five judge bench of the Supreme Court declared in answer to

objections raised by the State of Andhra Pradesh in relation to

the said suit being barred under Article 262:

“.. Thus Article 131 being subject to the other provisions

of the Constitution including Article 262, if Parliament

has made any law for adjudication of any water dispute

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or a dispute relating to distribution or control of water in

any inter state river or river valley, then such a dispute

cannot be raised before the Supreme Court under Article

131 even if the dispute be one between the Centre and

the State or between two states. In exercise of

Constitutional power under Article 262 (1), the

Parliament, in fact has enacted the law called the Inter

State Water Disputes Act, 1956 and Section 11 of the

Act provides that neither the Supreme Court nor any

other Court shall have jurisdiction in respect of any

water dispute which could be referred to a Tribunal

under the Act. This being the position, what is necessary

to be found out is whether the assertions made in the

plaint filed by the State of Karnataka and the relief

sought for, by any stretch of imagination can be held to

be a water dispute, which could be referred to the

tribunal, so as to oust the jurisdiction of the Supreme

Court under Article 131”

State of Karnataka Vs. State of Andhra Pradesh and Ors.

A.I.R 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-Apr-

2000.

29. In a matter connected with the above suit, another Original

Suit (Original Suit No. 2 of 1997) was filed by the State of

Andhra Pradesh against the State of Karnataka and others. The

plaintiff State sought several declarations from the Court with

a view to restrain, among others, the upper riparian State of

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Karnataka from proceeding with projects which the plaintiff

State claimed were a continuing violation of the adjudication

effected by the Krishna Water Disputes Tribunal. The State of

Maharastra, Defendant No.3 in this Suit, advanced an objection

that the prayer made by the plaintiff State should not be

entertained under Article 131 in view of the bar placed upon

the jurisdiction of this Court under Article 262 of the

Constitution. The Court answered thus:

“It is not in dispute between the parties that the Inter

State Water Disputes Act, 1956 (hereinafter referred to

as the Disputes Act) is a legislation passed under Article

262 of the Constitution. It is equally not in dispute that

Section 11 thereof excludes jurisdiction of this Court in

respect of water disputes referred to the Tribunal. It

will, therefore, have to be seen whether the State of

Andhra Pradesh, as plaintiff, having invoked the

jurisdiction of this Court under Article 131 has, in

substance, raised ‘Water Dispute’ which will exclude the

jurisdiction of this Court as per Section 11 of the

Disputes Act read with Article 262 Sub-Article (2). In

other words, if in substance, the plaintiff wants

adjudication of any water dispute between it and the

other contesting States, namely, the State of Karnataka

or the State of Maharastra which are the upper riparian

States located in the Krishna basin through which the

river Krishna, which is admittedly an inter-state river,

flows”

16

“..Keeping in view the aforesaid salient features of the

plaint of the State of Andhra Pradesh, the nature of

controversies raised therein, reliefs claimed and the

issues which fall for consideration of the Court, it is

difficult to agree with the contentions of contesting

defendants…It is obvious that the disputes raised by the

plaintiff State of Andhra Pradesh pertain to the alleged

non-implementation of the binding award of the Krishna

Water Disputes Tribunal by defendant No.1 State. It has

nothing to do with raising of a fresh water dispute”.

State of Andhra Pradesh Vs. State of Karnataka and Ors.

A.I.R. 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-04-

2000.

30. Also, during the proceedings in the above Suit, (Original Suit

No.2 of 1997) filed under Article 131, the State of Maharastra,

defendant No.3, sought leave of the Court to raise an objection

to the raising of the height of the Almatti dam (controlled and

operated by the State of Karnataka) and this objection was

taken on the premise that some territories in Maharastra could

endure drowning or submergence thereof if the height of the

dam was not kept in check. The Court was further informed

that this objection was never raised by Maharastra before the

Krishna Water Disputes Tribunal because Maharastra did not

see any occasion to do so – the Tribunal had not considered

the question of clearance of any height of Almatti dam. The

Court observed:

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“The aforesaid grievance of the State of Maharastra

which is defendant No.3 against defendant No.1 is really

a dispute between the two defendants and does not

project any dispute qua the plaintiff state, but even

proceeding on the basis that suit under Article 131 is a

comprehensive one and seeks to resolve the simmering

dispute between all the contesting States which are the

riparian states situated in the inter state river Krishna

basin and not applying the strict yardstick of a suit

before an ordinary Civil Court, we have to appreciate the

real grievance voiced by the State of Maharastra against

the height of Almatti dam”.

“… it may be mentioned that the dispute sought to be

raised by defendant No.3 State of Maharastra is against

defendant No.1 State, namely, State of Karnataka

regarding any increase in the height of Almatti Dam

beyond 519 metres or for that matter beyond 512 metres

which, according to the …State of Maharastra can be the

permissible height and which would have no adverse

affect of submergence in the Maharastra territory.

However, this dispute cannot be resolved in the present

proceedings for the simple reason that it would assume

the character of a ‘water dispute’ as we will presently

see”.

“..Thus on a conjoint reading of Section 2 (c ) (i) and

Section 3(a) of the Disputes Act such a grievance voiced

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by defendant No.3 State against defendant No.1 would

consequently fall within the fore corners of the Disputes

Act enacted by the legislature under Article 262. Once

that conclusion is reached, the result becomes obvious.

This type of grievance and dispute cannot be adjudicated

upon by us under Article 131 and it is for the Maharastra

State if so advised to raise such a dispute which earlier

it did not raise, by filing an appropriate complaint under

Section 3 of the Disputes Act before the Central

Government and once that happens Section 4 of the Act

would be automatically attracted”.

“Thus the grievance about submergence raised by

Defendant No.3 State squarely falls within the scope of

‘water dispute’ between defendant No.3 State and

defendant No.1 State. For its resolution, adjudication by

the Tribunal is the only way out. ..In other words, it

remains an open dispute calling for its adjudication. It

cannot be considered by us under Article 131”.

State of Andhra Pradesh Vs. State of Karnataka and Ors.

A.I.R. 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-04-

2000.

31. Also, in the judgment and order made in the above Suit

(Original Suit No.2 of 1997), Justice Banerjee observed:

“…Significantly, Sub Article 2 of Article 262 by its

unequivocal language expressly provides for a total

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ouster of jurisdiction of courts including the Supreme

Court by parliamentary legislation as regards resolution

of such disputes. The subsequent legislation as

introduced into the Statute Book, namely the Inter State

Water Disputes Act, 1956 is such a legislation under

Article 262 of the Constitution and Section 11 thereof

excludes jurisdiction of the Courts including that of the

Supreme Court in respect of a water dispute”

“…Article 262 is specific as regards adjudication of

disputes pertaining to water whereas Article 131

provides for a general power and conferment of

jurisdiction of the Supreme Court…”

“There is, therefore, a total ouster of jurisdiction of all

courts…”

“..The Test of maintainability of a legal action initiated

by a State in a Court would thus be whether the issues

raised therein are capable of being referred to a

Tribunal for adjudication. In the factual matrix of the

matter under consideration, question of adjudication of

any water dispute within the meaning of Section 2 ( c )

would not arise. The suit pertains to implementation but

does not require any further adjudication of water rights

between the States..”

State of Andhra Pradesh Vs. State of Karnataka and Ors.

20

A.I.R. 2001 SC 1560 : (2000) (9) SCC 572. Decided on 25-04-

2000.

32. In an Original Suit filed under Article 131 by the State of

Haryana (Original Suit No.6 of 1996) against the State of

Punjab and the Union of India seeking a mandamus to a certain

effect from the Supreme Court was resolved thus when a

challenge was mounted by the State of Punjab upon the

jurisdiction of the Supreme Court to entertain a suit under

Article 131 in view of Article 262 of the Constitution read with

Section 11 of the Inter State Water Disputes Act,1956:

“..The averments in the plaint and the relief sought for

by the State of Haryana is not in the water from Ravi

Beas project. The entire dispute centres around the

question of the obligation on the part of the State of

Punjab to dig the portion of SYL Canal within its

territory which canal became necessary for carrying

water from the project to the extent the said water has

already been allocated in favour of the State of Haryana

under the provision of the Punjab Reorganisation Act

and the Subsequent agreement between the parties…

Thus the construction of SYL Canal is essentially one for

the purpose of utilising the water that has already been

allotted to the share of Haryana and consequently,

cannot be construed to be in any way inter-linked with

the distribution or control of water of, or in any inter-

state river or river valley”.

21

“There cannot be any dispute with the proposition that

in the event the present dispute between the two States

would come within the definition of ‘water dispute’ in

Section 2 ( c ) of the Act and as such is referable to a

Tribunal, under Sec.11 of the Act then certainly the

jurisdiction of this Court would be barred in view of

Article 262 of the Constitution read with Section 11 of

the Act”.

State of Haryana Vs. State of Punjab and Anr.

(2002) (2) SCC 507) : 2002 (1) SCR 227. Decided on 15-Jan-

2002.

33. In deference to the issues raised and the answer awarded

thereat in the Original Suit filed by the State of Haryana

(referred to in above paragraph) the State of Punjab filed an

Original Suit (Original Suit No.1 of 2003) before the Supreme

Court seeking several reliefs by placing State of Haryana as

the Respondent and the State of Haryana in response

advanced an additional prayer under its subsisting Original Suit

(Interlocutory Application No.4 in Original Suit No.6 of 1996)

whereof, among other things, the Supreme Court was asked to

revisit its stand on the role of Article 262 in foreclosing a Suit

filed under Article 131. The Court answered thus:

“The objection as to the jurisdiction of this Court on the

basis of Article 262 was specifically negatived in the

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judgment dated 15-Jan-2002 (State of Haryana Vs. State

of Punjab and Anr.) (Supra)”

“As we have said, both issues pertaining to the Court’s

jurisdiction under Article 145(3) and 262 have been

considered and decided by this Court. The issues have

been concluded inter parties and cannot be raised again

in proceedings inter parties”.

State of Haryana Vs. State of Punjab and Anr.

WITH

State of Punjab Vs. State of Haryana and Ors.

(2004) (12) SCC 673 : 2004 (6) SCALE 75. Decided on 04-01-

2004.

34. In a Writ Petition filed before the Supreme Court, the

Petitioner, Mullaperiyar Environmental Protection Forum, a

private group, raised several objections to the raising of the

Mullaperiyar Dam beyond a certain level and for a declaration

that the Agreement of 1886 (between Maharajah of Travancore

and Secretary of State for India in Council) and the Modified

Agreement of 1970 (between the State of Kerala and the State

of Tamil Nadu) be declared as ‘null and void’. It may be noted

that the States of Kerala and Tamil Nadu have maintained

competing claims over certain operational aspects of the

Mullaperiyar Reservoir.

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To decide the controversy on hand, the Supreme Court framed

as one of the issues,

“whether the jurisdiction of this Court is barred in view

of Article 262 read with Sec.11 of the Inter State Water

Disputes Act,1956”.

Reiterating that the jurisdiction of the court was indeed barred

under Section 11 of the Inter State Water Disputes Act, 1956

read with Article 262 of the Constitution in the matter of a

‘water dispute’, the Court specified that the controversy before

it was not a water dispute. It said,

“In the present case, however, the dispute is not the one

contemplated by Section 2 ( c ) of the Act. Dispute

between Tamil Nadu and Kerala is not a ‘water dispute’.

The right of Tamil Nadu to divert water from Periyar

reservoir to Tamil Nadu for integrated purpose of

irrigation or to use the water to generate power or for

other uses is not in dispute. The dispute is also not about

the lease granted to Tamil Nadu in the year 1886 or

about supplementary agreements of 1970. It is not in

dispute that the dam always had and still stands at the

height of 155 Ft. and its design of full water level is 152

Ft. There was also no dispute as to the water level till

the year 1979. In 1979, the water level was brought

down to 136 ft. to facilitate State of Tamil Nadu to carry

out certain strengthening measures suggested by the

Central Water Commission. The main issue now is about

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the safety of the dam on increase of the water level to

142 Ft. For determining this issue, neither Article 262 of

the Constitution of India nor the provisions of the Inter

State Water Disputes Act, 1956 have any applicability”.

Mullaperiyar Environmental Protection Forum Vs. Union of

India and Ors.

A.I.R. 2006 SC 1428 : (2006) (3) SCC 643. (Decided on 27-

Feb-2006).

35. The above decisions fully support the conclusion that neither

Article 131 nor Article 136 affords a statutory or other relief to

any State that is not happy with the order of a Water Disputes

Tribunal.

36. Further, certain continuing actions before the Supreme Court

that pertain to water disputes between States may have to be

monitored and noted for departure from previous rulings.

Some of them are:

37. By its Judgment and order dated 04-06-2004 coming after its

direction on an Original Suit (referred to in para 23 above), the

Supreme Court ordered the State of Punjab to hand over the

SYL Canal works to a central agency that was envisaged to

complete the work on the SYL canal and arrangements in this

respect were thrust upon the States of Punjab and Haryana

and the Union Government. The Court said that such an action

became necessary after persistent refusal by the State of

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Punjab to abide by its obligation to complete the work on the

SYL canal within its territory and which work was nearly 90 %

complete. Aggrieved by this Order, the Legislature of the State

of Punjab passed the “Punjab Termination of Agreements Bill,

2004” on 12-July-2004 which received the assent of the

Governor of Punjab shortly afterwards. The “Punjab

Termination of Agreements Act, 2004” was passed for the

express purpose of enabling the State of Punjab to abrogate its

prior commitments and obligations to other States in the

matter of sharing the waters in the Ravi, Beas and Sutlej rivers.

The Central Government, hindered by this development,

preferred the directions of the Supreme Court on 15-Jul-2004.

The President of India sought the advice of the Supreme Court

on 22-July-2004 in the matter under Article 143 of the

Constitution. Acting on the Presidential Reference, the

Supreme Court directed notices to the States of Punjab,

Haryana, Himachal Pradesh, Rajasthan, Delhi and Jammu and

Kashmir on 2-Aug-2004. The Supreme Court is yet to deliver its

verdict on this Reference.

38. Writ Petition (Civil) No.537 of 1992 filed by a private person

before the Supreme Court involved the issue of supply of

drinking water to the inhabitants of Delhi (Comdr.Sureshwar D

Sinha and Ors against the Union of India and others). One of

the respondents, the State of Haryana had challenged the

jurisdiction of the Supreme Court on certain aspects of this

issue by reason of the bar placed under Article 262 of the

Constitution and by the provisions of the Inter State Water

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Disputes Act, 1956. Arguments in this case continue and the

Supreme Court has, in response to the objection raised by the

State of Haryana, directed that the constitutional challenges

raised by the State of Haryana should be separately

considered and dealt with.

39. It therefore appears that either under Article 131 or Article

136, the Supreme Court may not choose to sit on appeal over

the order of a Water Disputes Tribunal to an extent that a

State, not happy that the Tribunal’s order does not advance its

claims and views, is afforded substantial relief thereby.

40. It may therefore be said that the Constitution excludes the

jurisdiction of the Supreme Court from adjudicating upon a

water dispute between States and that the Supreme Court is

not ousted from jurisdiction to restrain a State from violating

the terms of an award issued by the competent water dispute

tribunal. The authority of the Supreme Court to restrain a State

from engaging in any conduct detrimental to the interests of

other States in disputed waters extends to, among others,

directing the Central Government to constitute a tribunal to

adjudicate upon a water dispute raised before it and to

determine if a tribunal is competent and authorised to offer a

relief sought by a party State.

Regards

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K.V.DHANANJAY

Advocate

Supreme Court of India

New Delhi

Email : dhananjaylegal@gmail.com

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